1812492 (Refugee)
[2022] AATA 2842
•28 June 2022
1812492 (Refugee) [2022] AATA 2842 (28 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Galen Jaffurs
CASE NUMBER: 1812492
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Peter Haag
DATE:28 June 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 28 June 2022 at 2:36pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – Tamil ethnicity – imputed political opinion – connection to the Liberation Tigers of Tamil Eelam (LTTE) – brother of a ‘low profile’ LTTE combatant – adverse ASIO security assessment – personal data breach in 2014 – mental health issues – current civil unrest and weakening national economy – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2CASES
MIAC v SZQRB (2013) 210 FCR 505Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 16 September 2015. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (ss 36(2)(b) and 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 5 April 2022 and 14 June 2022 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.]
The applicant was represented in relation to the review.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT), expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The relevant DFAT country information assessment is the DFAT Country Information Report on Sri Lanka dated 23 December 2021 (the DFAT country information report or the DFAT report).
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Section 5AAA of the Act
The Tribunal notes that, pursuant to s 5AAA of the Act, it is for the review applicant in this review to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
Applicant’s identity
The applicant claims he is a Sri Lankan citizen, born in [Village 1], [City 1] on [date]. He has also been informally known as ‘[Alias 1]’ or ‘[Alias 2]’ by family and friends. He is ethnically Tamil and of Hindu religion. The applicant states he can speak, read and write Tamil, and can speak a little English. He claims to have never married.[1]
[1] Part C – SHEV application form 790B.
At the time of application, the applicant’s father was deceased; it is also claimed in other documentation that his father went missing in 1993.[2] His mother, one brother and [number] sisters were living in Sri Lanka. His eldest brother was living in [Country 1], another brother was living in [Country 2] and an uncle was living in [Country 3].[3]
[2] Department file [number], Doc ID 4407316.
[3] Parts B and C – SHEV application form 790B.
The applicant claims to have worked as a [Occupation 1] in Sri Lanka until May 2009. He was unemployed at the time of application. He received his education at [named school] in [Village 1], [City 1] from 1991 to 2001.[4]
[4] Part C – SHEV application form 790B.
The applicant provided the Department of Home Affairs (the Department) with a copy of his UNHCR Asylum Seeker Certificate issued [in] January 2010 in Jakarta, passport, and Sri Lankan National Identity Card. The applicant also provided a deposit slip from ‘[Bank 1]’, however the details, such as amount deposited and account number, are not legible. The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen and national of Sri Lanka, and as such his protection claims will be assessed against Sri Lanka as the country of reference and ‘receiving country’ respectively.
Migration history
The applicant arrived at Christmas Island [in] March 2010 as an irregular maritime arrival, where the applicant was held in immigration detention. The applicant claims to have left Sri Lanka by air on a valid passport and travelled to [Country 4] in May 2009, He entered [Country 4] as the holder of a valid tourist visa and stayed in [Country 4] until October 2009. He then travelled to [Country 5], leaving for [Country 6] in October 2009, where he stayed for five months as a detainee on [a named] Island until travelling by boat to Australia.[5]
[5] Part C – SHEV application form 790B; Entry interview 5/04/2010; Case Assessment Report 14/05/2011.
The evidence satisfies the Tribunal that the applicant departed his home country, Sri Lanka, legally and that if he is returned to his home country he would not be treated upon arrival as a person who departed the country illegally.
The applicant was interviewed by Immigration on 5 April 2010.
The applicant received Notification of a Refugee Status Assessment Outcome dated 17 December 2010, stating that he was found to be a refugee as defined by the Refugee Convention.[6] The Tribunal has considered the assessment in the context of the material and evidence in this review.
[6] Department file [number], Doc ID 4407333.
The applicant received an adverse security assessment from ASIO in 2011. This was superseded on 24 June 2015 when ASIO issued a non-prejudicial security assessment.[7]
[7] Department file [number], ICSE Notes (Doc ID 4407344).
The applicant was transferred to [an immigration] Detention Centre in 2011, where he was held in detention for one year. He requested transfer to Melbourne on 25 September 2011.[8] An International Health and Medical Services assessment on 1 February 2012 indicated his persistent depressive symptoms were exacerbated by his then current environment.[9] Detention Services Provider Assessments on 10 February 2022 and 20 February 2022 indicated a history of abusive/aggressive behaviour and self-harm (voluntary starvation).[10] He received a psychiatric review on 22 February 2012 for a health discharge assessment.[11]
[8] Department file [number], Doc ID 4407328.
[9] Department file [number], Doc ID 4407346.
[10] Department file [number], Doc ID 4407335, Doc ID 4407337.
[11] Department file [number], Doc ID 4407345.
The applicant was moved to Melbourne Immigration Transitory Accommodation from [location] in November 2012.[12]
[12] Department file [number], Doc ID 4407316.
An Updated Assessment Report dated 3 June 2013 from Foundation House advised that the applicant had a major depressive disorder, and his mental health would continue to deteriorate if he remained in detention. He had engaged well with counselling.[13]
[13] Department file [number], Doc ID 4407316.
A letter dated 12 March 2014 from the Department advised the applicant that personal information about people in immigration detention on 31 January 2014 was accessible for a short period on time, and that the applicant’s personal information may have been accessed.[14]
[14] Department file [number], Doc ID 4407325.
The applicant was granted a Bridging visa E on 25 August 2015. He consented to remain residing in MITA until arrangements were made for pick-up and accommodation on 26 August 2015.[15]
[15] Department file [number], Doc ID 4407336.
The applicant applied for a Safe Haven Enterprise Visa (Subclass 790) (SHEV), dated 17 September 2015, received by the Department on 22 September 2015.
He declared in the application that he had applied for a visa to Denmark while still living in Sri Lanka (no date provided), but this was refused for lack of documentary evidence. He had also overstayed a visitor visa in [Country 4].[16]
[16] Part C – SHEV application form 790B.
The applicant is currently onshore on a Bridging E visa, granted 15 January 2016.[17]
[17] Department file [number], Doc ID 4407300.
The applicant was invited by the Department to attend an interview, held on 22 February 2018, regarding his visa application.
Applicant’s evidence
As part of his application for a protection visa, in a statutory declaration dated 17 September 2015 the applicant made the following claims:
1. Subject to the following issue in my protection claim statement dated 13 June 2010, I continue to rely on my evidence and information that I previously provided to the Australian government. As I informed the Department since providing this statement, my elder brother who was in the L TTE is no longer missing. I provide further details about this below.
2. I now make this further statement in order to provide additional information for the purposes of my protection visa application.
3. I was born in [City 1] in [year], in a village called [Village 1]. There was fighting between the military and the LTTE in about 1995 throughout the [City 1 area]. My father went missing in around 1994 or 1995. He was also a [Occupation 1], and left [Village 1] to work in other towns in the province, but we never heard from him again and do not know what happened to him. My family and I were displaced, and we moved to different locations within the [area]. I was only approximately [age] years old and I cannot recall where we lived. In 1996, the military captured [City 1] and the fighting was over. We resettled in [Village 1]. Our house had been destroyed but we rebuilt another hut. From 1996 onwards, [Village 1] was under the control of the military.
4. I always lived in [Village 1] from this time on, except for a period when I worked in [Area 1], between 2003 and 2005. This was during a ceasefire. I then returned to [Village 1] and lived there until I fled Sri Lanka in 2009.
5. As I have explained previously, my brother, [Brother A], joined the LTTE in 1993 but I initially didn't mention this in my entry interview because I was afraid that it would be held against me, I would be sent back to Sri Lanka and the Australian authorities would tell the Sri Lankan authorities about my brother. I was very frightened of what the Sri Lankan authorities would do if I was made to return. But once I was told by a previous lawyer that the Australian authorities could not talk to the Sri Lankan authorities, I wanted to tell the truth and I have always told the truth. The delegate who found me to be a refugee accepted this explanation as credible. 6. I do not know a lot about my brother's involvement because I was so young when he became involved. He went to [Area 1]. His involvement with the LTTE caused problems for my family with the Sri Lankan authorities.
7. Some time after we went back to [Village 1] in 1996, the military came to our house and took our family details. They asked about my brother who was in the L TTE. They came back another time and asked about my brother again. My mother did not admit to my brother’s involvement because she knew that the military would take my other two older brothers away. 8. The military did come for my other brothers. I was only [age] years old at this time so no one showed any interest in me. My brothers both left Sri Lanka as a result of the military' s harassment of them. One brother went to [Country 1] in 1996. Another brother left Sri Lanka in approximately 2000 and has settled in [Country 2].
9. I do not know my brother very well or know exactly what he did for the LTTE. I have never been told what unit he was in, or what his position or role was. All I know is that my brother was caught in the final battle in [location]. I was very young when he joined. I went with my mother to [Area 1] once in 2002 during the ceasefire and found him after searching and trying to see him for a few days. We wanted to make sure he was still alive as we had not had any contact with him since 1993. This was the first time I had seen him since 1993. We then went back to [City 1] after another few days. After this, my brother had permission to visit our family on a few occasions for a couple of weeks at a time. We never spoke about the LTTE. He would just come and spend time with us. We would share meals and be happy together.
10. Some time before this, when I was approximately [age] or [age] years old and after I finished school, I began my training or apprenticeship as a [Occupation 1]. This is my family trade. At first, I would just [do basic tasks]. I then learnt [more advanced skills] and from there I was able to [fully master the trade]. I always had the same employer the whole time I was in Sri Lanka.
11. During the ceasefire my employer arranged for me and other workers to go to [Area 1] for work, which was a LTTE controlled area. At this time it was possible to move in and out of the area, provided you had the right papers and permissions. I worked in total in [Area 1] during a 2 year period, but I went back to [City 1] at different times during those 2 years. I would go back once a month to give my wages to support my family.
12. To cross into and temporarily reside in the LTTE area my employer arranged passes. I believe that he went to the LTTE checkpoint where he had to complete forms and give his employees’ names, other details and our photographs. He also had to give information about where we would be and what work we would be doing. The pass was only for a limited time. When there, we worked on [specified projects] for example. I was just doing my job as a [Occupation 1]. However, I was made to undertake a few minor [specified] jobs by LTTE members. We were obligated to do this because they had given us permission to work there. I did not go to a big LTTE camp but was made to work on buildings in the public areas. For example, one time I [do specified job], and another time I [did another job]. They would come to the place where we were working on that day and take us away for a few hours to do their job.
13. The last time I saw my brother was around 2005 when he visited our house on leave from the LTTE. I was back at home permanently at that time. I did not see him again because fighting resumed seriously from 2006 and the [highway], which connects [City 1] to the [rest of the country], was closed.
14. When I had my interview with the Department we thought that my brother had been killed. He had been held in a detention camp and then a [rehabilitation camp]. When he was in the detention camp, my mother tried to visit him and could not find him. For that reason we feared he was dead. Later he was able to contact us and we knew he was alive.
15. After the ceasefire ended, we had some problems with the authorities. My brother's previous visits caused the military to refocus their attention to us. In 2008, the military came and took me, along with others. Like the others I was identified as having family links with the LTTE. They asked me if I worked for the LTTE and where my brother was. They asked whether we had weapons at our house because my brother had visited us. I was detained and beaten. After I was released I was made to return once every week or two and sign a piece of paper each time. Due to my fear of the authorities, I fled Sri Lanka in May 2009.
16. I arrived in Australia in March 2010. Later in in September 2010 I was found by a delegate of the Minister to be a refugee and owed protection by Australia. However, in August 2011, the external agency issued an adverse security assessment in relation to me. In December 2012, I applied for independent review of his adverse security assessment.
17. In April 2013 I was provided with an unclassified written summary of the reasons from the external agency for their decision to issue me with an adverse security assessment. Most of it was blacked-out so I couldn't properly understand how they reached this conclusion. However, their conclusions were as follows:
a. I ideologically supported the LTTE and its use of politically motivated violence;
b. I was likely involved in LTTE training and the provision of material support and information to the LTTE; and
c. I was likely to engage in acts prejudicial to Australia's security if I was granted a permanent protection visa.
18. In February 2014 the Independent Reviewer upheld my security assessment, agreeing with the external agency's findings and conclusions. Again a lot of the reasons were blacked out so I don't really know how she reached that decision.
19. Earlier this year I was informed that the external agency had decided to issue me with a non-prejudicial security assessment. This was a huge relief for me because I had been in detention for over five years. Some time after this I was eventually granted a bridging visa to leave detention. My extended period of detention was very hard on me and it has caused me a lot of mental problems.
20. As I have stated, I continue to rely on my previous evidence provided to the Department about why I would be at risk of persecution and other serious human rights abuses at the hands of the Sri Lankan authorities and their agents if I were returned. I continue to hold these strong fears of returning and I also believe that the risks to my safety in Sri Lanka now and in the near future would now be even higher for reasons including (but not limited to) those that follow.
21. I have been assessed by the Australian government to be a person strongly ideologically supportive of the LTTE, a risk to national security and the equivalent of a terrorist. Because of this I was held in detention for many years for fear I would be a danger to the public. I was well known to the Sri Lankan authorities when I escaped and I would be even more well-known now because of my classification here as essentially a terrorist and because I was held in detention for this reason for so many years.
22. I was also aboard an asylum seeker boat that was held in [Country 6] at [location]. This incident received a lot of international attention. A lot of our pictures were in the media then and it was widely thought that the boat contained senior LTTE people. It is also known that the Sri Lankan authorities themselves had photographs of persons there because they were interested in the people who were fleeing. I am also worried that this has added to my already significantly adverse profile with the Sri Lankan authorities. My previous representative provided the Department with a lot of information about this and the consequences for me if I was ever returned to Sri Lanka.
23. I also know that last year the Department accidentally published on the Internet my personal details and other sensitive information about me, and other persons in immigration detention. They called this the 'data breach'. This would have made me of even more adverse interest to the Sri Lankan authorities. Even if the Sri Lankan authorities didn't know before about me being in Australia they would know from this breach in confidentiality that I was being held in detention in Australia a very long time after I left Sri Lanka, and that had sought asylum here. They would obviously infer that I told the Australian government about all of the bad things that the Sri Lankan government did to me and my family. I have never been provided with the full detail of what exactly was leaked on the internet (and who accessed that information). Following this I request that the Department provide me with an unabridged copy of the full report on the data breach that it has in its possession. Without this document I am not able to provide further information about this and the further risks of harm this action by the Department has caused me.
24. I also believe it is possible that the security officials in Australia have communicated with the authorities in Sri Lanka about me. Even though I am told they would not do this I cannot be sure and I fear this may also have put me at further danger.
25. All of these things have greatly increased the risk of serious human rights abuses for me in Sri Lanka. If l were to be returned there now I would certainly suffer more torture, arbitrary detention and again be at risk of being killed.
26. I left Sri Lanka on a genuine passport that was issued in my name. However, when I got to [Country 5] the agent took my passport. I was told that when we would be boarding the ship we would be given it back but when we were finally boarding everything was very hurried and there was no opportunity to get it returned. When I was on the boat I never saw that man so I had no hope to get it back. I have provided the Department with a copy of this document along with many other identity documents of mine.
27. It is for the reasons above that I have sought protection in Australia.
28. As I stated above, the further information I have provided in this statement is in addition to, and not in any way to the exclusion of, the information and evidence I previously provided to the Australian government regarding why I fear returning to Sri Lanka.
In the entry interview conducted on Christmas Island, 5 April 2010, the applicant claimed:
·That he was taken to a camp with 15 other people and interrogated by the Sri Lankan Army for one hour, then released;
·516 people were gaoled;
·He had to sign a register every second week; it would take half an hour to sign. He came and signed for two months.
·The army would ask if he was a member of the Liberation Tigers of Tamil Eelam (LTTE); he was only beaten the first time he was taken to the camp.
·He left [Village 1] because he was afraid to go sign. No-one knew what happened to the people who were arrested.
·If he returned to Sri Lanka the army would detain or shoot him. If a person is detained a second time they would not come back.
·The Sri Lankan Army would think he was LTTE because he worked in [Area 1] as a [Occupation 1] from 2003 to 2005.
·The applicant also provided details of how he came to Australia, including paying USD1,000 to travel to [Country 4] and USD14,000 to travel from [Country 5] to Australia.[18]
[18] Department file [number], Doc ID 4407362.
In the RSA interview on Christmas Island on 15 June 2010, the applicant claimed:
·He travelled to Colombo from [Village 1] in 2009; in response to questions about needing a pass, the applicant replied that he had a family form which he gave to the travel agent;
·He was arrested around November 2008 in a general round-up; he was detained for two months and had to attend the army camp;
·He travelled to Colombo with his mother in January 2009 and rented a house from a Sinhalese family. They lived there for four or five months;
·He applied for a passport from the passport office and went to [Country 4] in May 2009, then [Country 5] and then to [Country 6]. He was on a boat in [location] from October 2009 until 18 January 2010;
·He did not claim his brother’s involvement with the LTTE in the entry interview because he was ‘tense’;
·He spoke to his family about the agent arranging travel from [Country 5] to Australia.[19]
[19] Department file [number], Doc ID 4407334.
In the protection visa interview with the Department on 22 February 2018, the applicant made claims regarding his father’s disappearance between 1993 and 1995, his brother, [Brother A], joining the LTTE in 1993 and being jailed in the final part of the war for four years, the SLA questioning his family about his brother, his other two older brothers leaving Sri Lanka in 1996 and 2000, as well as reiterating his claims in the SHEV protection visa application.
The applicant’s representative provided submissions in support of the application for a SHEV protection visa, dated 1 March 2018, to the Department. This included categories of the personal information compromised in the data breach in 2014, such as name, citizenship, date of birth, period of detention, boat arrival details and reasons why the individual was deemed to be unlawful. It was submitted that from this the Sri Lankan government would be aware of the applicant being detained in Australia ‘for a prolonged period of time on account of an adverse security assessment’. It was also submitted that the applicant’s presence on the boat in [location] in [Country 6] would lead the Sri Lankan authorities to impute him to be pro-LTTE.[20]
[20] Department file [number], Doc ID 4407295.
On 28 March 2022 the Tribunal received submissions from the applicant’s representative dated 27 March 2022. The representative claimed, inter alia:
[The applicant]’s ethnicity, his family’s participation in the LTTE and hostile treatment by Sri Lankan authorities, his adverse ASIO security assessment, the disclosure of his personal information by the Australian government in the 2014 ‘data breach’, etc. are all directly relevant to the risk of being imputed to hold adverse political opinions.
Additionally, the representative claimed that the COVID-19 pandemic would increase his risk of harm, hindering his ability to subsist.
The applicant submitted to the Tribunal an undeclared statutory declaration, received 28 March 2022. He stated that:
·He currently works as a type of [Occupation 2] and part-time [Occupation 1];
·Only his mother continues to reside in Sri Lanka;
·He has been in contact with his brother, [Brother A], who left Sri Lanka in 2015 because of problems with the Sri Lankan authorities after his release from jail in 2013 and now lives in [Country 2];
·His mother was visited by the CID two or three times after his brother left; and
·He is unable to safely return to Sri Lanka because:
I believe that my background, being repeatedly and publicly accused of being an LTTE member, the negative ASIO assessment I received, my involvement in the [specified boat] incident, the 2014 data breach, my brother’s issues and other events have made me of great interest to the Sri Lankan authorities. I fear that they believe that I may be more involved in the LTTE than they previously knew, that I pose a risk or that I have information on people that do. As a result, if I was forced to return to Sri Lanka, I would almost certainly be arbitrarily arrested, held for a prolonged period and subjected to serious physical harm and possibly killed.
The applicant also submitted a letter from his brother, [Brother A], dated 24 March 2022, claiming that:
·He ([Brother A]) is a former member of the LTTE;
·His former commander ordered him to bury explosives before the end of the war;
·His commander surrendered and gave his name, and he was arrested and imprisoned in 2008 under the Prevention of Terrorism Act 1979 (the PTA);
·He was released in 2013 because his mother bribed prison officials, but further persecuted because authorities believed he had buried more explosives;
·He left for [Country 2] in 2015 through a travel agent, and was granted asylum there in 2019; and
·He believes his brother (the applicant) is at risk because of the applicant’s relationship to himself and the applicant’s own profile.
The applicant submitted a further statutory declaration to the Tribunal dated 5 April 2022 claiming, amongst other things, that:
·In detention his mental health was poor;
·He has not seen a psychologist for a number of years;
·He continues to have some mental health issues;
·His mental health is not the same as it was and does not require the same kind of treatment.
·He has resided and worked in the Australian community since 2015;
·His brother, who was previously a member of the LTTE, was released from detention in Sri Lanka sometime in 2013; thereafter he was monitored by the authorities. He left Sri Lanka in 2015 and travelled to [Country 2] where he was granted asylum;
·Apart from learning more about his brother’s current circumstances, little has occurred to changed in his life since 2018;
·He believes he will be arbitrarily arrested, detained for a long period and possibly killed if he returns to Sri Lanka;
·He is of great interest to the authorities due to: being repeatedly and publicly accused of being a member of the LTTE; his negative ASIO assessment; a data breach in Australia in 2014; and his ‘brother’s issues and other events’.
Matters arising after the first hearing
At the conclusion of the review hearing (5 April 2022), the applicant’s representative asked for an opportunity to provide post-hearing submissions relating to the current widespread civil unrest and anti-government protests in Sri Lanka. The Tribunal acceded to the representative’s request.
On 6 April 2022, the applicant’s representative informed the Tribunal in writing that the review applicant did not intend to make submissions and had no further information regarding recent changes in country information and protests occurring throughout Sri Lanka, and he did not do so.
Second hearing
In the circumstances, the Tribunal decided out of considerations of fairness to the applicant, to invite him to another hearing. Accordingly, the applicant was invited to participate in a second hearing on 14 June 2022.
The hearing invitation informed the applicant that the purpose of the hearing is to give him an opportunity to give evidence and to make submissions about the current state of civil unrest in Sri Lanka, and whether he wants to rely in anyway on those circumstances in respect of his application for a SHEV.
The applicant gave evidence at the hearing and his representative spoke to written submissions with the date 10 June 2022.
Consideration of the materially relevant evidence
The applicant’s claims have been considered in the context of the DFAT country information report for Sri Lanka. It reports the LTTE was the most prominent Tamil separatist armed group in the 26-year civil war in Sri Lanka. The LTTE formed in 1976 and launched an armed insurgency against the Sri Lankan state in 1983. Government forces re-took the north and east of the country from 2007 to 2009 culminating in the military defeat of the LTTE in May 2009.
DFAT assesses the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would only have minimal capacity to exert influence on Sri Lankans. Local sources told DFAT that the Tamil community had abandoned militancy and was committed to addressing its grievances through political means.
According to the applicant’s evidence at hearing the applicant and his mother moved to Colombo from their home region where they were living in 2009, before he departed Sri Lanka on a tourist visa and travelled to [Country 4].
According to the applicant’s evidence at hearing, to live in Colombo he needed to register with the police and that was done. Further, the applicant obtained a valid passport while he was living in Colombo. There is no evidence that the applicant was harmed or treated adversely by the police or other authorities in Colombo because he is Tamil, or for reasons of political opinion, or for any other reasons specified in s 5J(1)(a) of the Act.
The evidence establishes the applicant departed Sir Lanka legally by air using his Sri Lankan passport in May 2009. There is no evidence the applicant’s departure from the airport in Colombo was challenged or hindered by the authorities.
The DFAT report informs that after the defeat of the LTTE, the authorities remain concerned over any potential re-emergence of the LTTE and separatist tendencies in general. It is reported to DFAT that the authorities collect and maintain sophisticated intelligence on former LTTE members and supporters including ‘stop’ and ‘watch’ electronic databases. If the applicant was regarded by state security and treated in their information systems as a person who posed a risk to national unity and state security, it reasonable to expect he would have been subjected to ‘stop’ and ‘watch’ contact with state security when he registered with the police in Colombo or during the process of obtaining his passport or when he was checked by the authorities at the airport. There is no evidence that the applicant was treated adversely in Colombo by the authority for reasons of his ethnicity, political opinion or for any of the other reasons identified in s 5J(1)(a) of the Act.
The circumstances surrounding the applicant’s departure including, the absence of evidence that he was stopped in Colombo, that his ability to obtain a passport in Colombo was impeded, or his departure hindered, weigh against the applicant having a political profile that warranted him being placed on a ‘stop’ and ‘watch’ database by the law enforcement and state security agencies in Sri Lanka prior to his departure, or at the time he departed from Sri Lanka. These circumstances, considered cumulatively, weigh against the existence of a real chance of the applicant being persecuted in Sri Lanka due to his brother’s activities as a member of the LTTE, and that the applicant was classified by the authorities as a member or supporter of the LTTE, a Tamil separatist or a threat to national unity and state security during the time he was living in Colombo and when he left Sri Lanka in 2009.
According to the applicant’s evidence at the first hearing, he was never a member or supporter of the LTTE, and he is not, and never has been, a Tamil separatist. He never participated in armed conflict or anti-government conflict in Sri Lanka. The applicant never trained for armed conflict or any other sort of anti-government conflict in Sri Lanka. The Tribunal is satisfied the applicant was not involved in or a supporter of any Tamil separatist group or Tamil separatism in Sri Lanka.
According to the applicant’s evidence, his older brother, [Brother A], left the family home in 1993 and joined the LTTE’s armed forces. At that time the applicant was young; he did not have a close relationship with this brother. Between 1993 and 2002, the applicant had no contact with his brother in the LTTE.
The applicant and his mother saw his brother in 2002 briefly, during the cessation of hostilities between the LTTE forces and the central government.[21] According to the applicant’s evidence, his brother was the only member of his family who supported the LTTE and Tamil separatism.
[21] Department file, applicant’s statutory declaration declared at [Suburb 1] on 17 September 2015.
The applicant last saw his brother in approximately 2005 when he was on leave from the LTTE. He briefly visited the family home during this time.
The Tribunal is satisfied the applicant’s brother was a member of the LTTE and he was involved in armed conflict with government forces, and he was a Tamil separatist.
As the Tribunal understands the applicant’s evidence, the applicant and his mother feared his brother had been killed. As the Tribunal understands the evidence, the applicant later learnt brother was captured by government forces in the closing stages of the civil war. He was wounded in battle, captured by government forces, given medical treatment and then interned in a rehabilitation camp. He was permitted from time to time to visit his mother.
According to the applicant’s evidence, the purpose of the camp was to persuade members of the LTTE to give-up the pursuit of separatism and return to mainstream society.
According to the applicant’s statutory declaration dated 5 April 2022, which is in evidence in the review, he learnt his brother was released from detention in approximately 2013. After he was released, he was monitored by the authorities.
In contrast to his brother, the applicant never joined or supported the LTTE and there is no evidence that he actively supported his brother’s separatist activities or his LTTE related activities.
When the applicant was approximately [age] years of age, he commenced an apprenticeship in [Occupation 1]. He completed his training and then commenced full-time employment with the person to whom he was apprenticed. The applicant worked for this employer as a [Occupation 1] until he left Sri Lanka in 2009.
According to the applicant, during his employment, the government and the LTTE declared a ceasefire. During the ceasefire, the applicant, for a period of approximately two years, in the course of his employment, travelled to and from a government-controlled area where he lived and his employer’s business was located, into a LTTE controlled area known as [Area 1]. He did [Occupation 1] jobs for his employer in [Area 1]. His employer obtained the necessary permits for him to enter and work in that region.
According to the evidence, the applicant moved between the government-controlled area of [Area 1] in the ordinary course of his employment and without objection from the government authorities or the LTTE. There is no evidence to suggest the applicant’s employer was adversely known to the authorities due to the applicant working in [Area 1], or for any other reason.
According to the evidence a relatively minor amount of the applicant’s work in [Area 1] involved doing repairs and maintenance work on buildings occupied by members of the LTTE. More specifically, the applicant claims that in addition to doing [Occupation 1] jobs for his employer, he did some small [jobs] for members of the LTTE. Nevertheless, the applicant was able to enter and leave LTTE controlled areas and work in [Area 1] for approximately two years because he was authorised to do so. There is no evidence the government authorities or the LTTE forces prevented him from doing so.
The evidence is insufficient to establish to the satisfaction of the Tribunal that the Sri Lankan authorities were aware of the applicant undertaking work for members of the LTTE in addition to completing the jobs assigned to him by his employer during the period he worked in [Area 1].
The evidence is insufficient to establish to the satisfaction of the Tribunal that any work the applicant undertook for members of the LTTE or the period he spent working in [Area 1] is reasonably likely to cause the applicant to be regarded by the state security apparatus as a member or supporter of the now defeated LTTE, a Tamil separatist, or a person who posed a risk to national unity, state security or good order and government.
According to the applicant’s statutory declaration declared on 17 September 2015 in [Suburb 1], Melbourne, fighting between the government and the LTTE resumed in 2006. In this context, the applicant asserts he was arrested by members of the government’s military forces along with about 14 other people. There is no evidence that the applicant’s arrest came about because he knew any of the other 14 people arrested.
The Tribunal accepts the applicant was arrested in 2008, his hands were tied, and he was detained at a military camp. The Tribunal accepts he was questioned and beaten during his detention, which lasted a few hours.
The evidence satisfies the Tribunal that the applicant was arrested because he was related to a known member of the LTTE, namely his brother, [Brother A]. As the Tribunal understands the applicant’s evidence, the focus of the questioning concerned the applicant’s brother. It was primarily directed to disclosing whether the applicant was in communication with his brother and had any knowledge of his whereabouts or the location of any hidden weapons.
According to the applicant’s evidence at hearing, the applicant’s mother came to the camp where he was being held not long after he was arrested and demanded his immediate release. After a short time, her demands were met and he was released. The applicant was required to report to the authorities and sign a register either weekly or fortnightly. The applicant did so for approximately two months.
In the context of signing the register, the applicant was questioned about any association he may have had with the LTTE. The process of signing the register would take approximately 30 minutes. The applicant stopped reporting to the authorities and signing the register. There is no evidence this requirement was stopped with the permission of the authorities.
The applicant’s 2015 statutory declaration indicate the applicant’s brief detention in 2008 precipitated his fear of the authorities and his departure from Sri Lanka in May 2009.
Before the applicant left Sri Lanka in May 2009, and after he was released from detention in 2008, he moved to Colombo with his mother where he found employment. He resided in Colombo for approximately three months. The Tribunal has previously discussed material aspects of the period the applicant spent in Colombo. He registered with the police, obtained a passport from the authorities, and departed the country legally via the main airport in Colombo on a tourist visa for [Country 4]. He did all of that without any evidence of him being hindered or coming to the adverse attention of the authorities.
Relevantly, DFAT assesses that the LTTE no longer exists as an organised force inside Sri Lanka, and any former LTTE members within Sri Lanka would only have minimal capacity to exert influence on Sri Lankans.
According to the DFAT country information report, the LTTE was comprehensively defeated in 2009; nevertheless, the authorities remain concerned over its potential re-emergence, and separatist tendencies in general. Further, Sir Lankan authorities collect and maintain sophisticated intelligence on former LTTE members, supporters and other separatists, including ‘stop’ and ‘watch’ electronic databases. DFAT understands these databases remain active.
The DFAT country information report states:
‘Stop’ lists include names of those individuals who have an extant court order, arrest warrant or order to impound their Sri Lankan passport. ‘Watch’ lists include names of those individuals whom the Sri Lankan security services consider to be of interest, including for suspected separatist or criminal activities.
Relevantly, the applicant was: able to register with the police in Colombo and reside there with his mother; issued with a passport in Colombo, and it was not confiscated; and able to depart Sri Lanka legally and without hindrance at the airport. These circumstances weigh against the applicant being classified by the authorities as a Tamil who threatened national unity, state security or the government at the time he departed Sri Lanka in May 2009.
Considering the applicant’s evidence and the DFAT country information report about harsh treatment, including extrajudicial killing of Tamil separatists, the Tribunal is of the view that it is unlikely the applicant would have been released after a brief period of detention due to the entreaties of his mother at the camp where he was detained, and simply required, for a relatively short period after his release, to report to a police station and sign a register, if he was classified by the authorities as a member or supporter of his brother and the LTTE or a Tamil separatist, or a significant risk to national unity and state security.
On balance, the applicant’s evidence about his detention and treatment by the authorities, his employment history, his permissions to move in and out of LTTE held areas for work, his ability to register with the police in Colombo and to move to and live in Colombo for about three months prior to his departure, and his ability to obtain and retain a legitimate passport and to depart legally by air without hindrance from the authorities at the airport indicate it is likely the applicant was detained in 2008 as a person of interest due to his brother being a member of the LTTE, and that he was a potential source of information about his brother’s whereabouts and his LTTE related activities. The evidence does not persuade the Tribunal that the applicant was detained because he was classified by the authorities as a member or supporter of the LTTE, or a person who posed an actual threat to national unity or state security.
Further, the evidence is insufficient to establish to the satisfaction of the Tribunal that the authorities imputed to the applicant a propensity to actively support the LTTE, join the LTTE, want Tamil separatism, engage in armed conflict or acts of terrorism according to Sri Lankan law, while he resided in Sri Lanka.
The applicant’s brother no longer resides in Sri Lanka, and there is no evidence that any other member of the applicant’s family or associates supported the LTTE or Tamil separatism or opposed the government.
The applicant’s brother, [Brother A], the former member of the LTTE, provided a letter with the date 24 March 2022 to the Tribunal. In summary, the letter confirms the brother was involved in the conflict between the government’s armed forces and the LTTE until the end of the civil war in 2009. He states he was arrested under the PTA in 2009, at the end of the war, because his commanding officer named him as a soldier who worked under his command and that he had hidden explosives. The brother states in his letter that he buried explosives at the end of the war because they were a risk to the public. He was tortured in prison and released because his mother bribed officials in 2013.
The brother does not specify what information, if any, the authorities wanted him to divulge, or any reason or reasons for his arrest under the PTA in 2009, or the length of his period of imprisonment and torture during that time.
The brother seems to be suggesting that he may have been tortured to disclose the location of explosives. Given the reason for burying the explosives was to protect the public, it seems implausible that the brother would not seek to avoid being tortured by disclosing the location of the explosives to the authorities if he was involved in hiding them. The brother does not state he disclosed the location of buried explosives during the period he claims he was being tortured.
The evidence before the Tribunal indicates the applicant’s brother was a ‘rank and file’ member of the LTTE’s armed forces. The evidence does not establish the applicant’s brother was involved in LTTE activities that would make him a likely target for arbitrary arrest, detention and torture between his capture at the end of the war and his release in 2013. The brother’s claim about being arrested in 2009 under the PTA, and his detention and torture, is vague in nature and lacking in relevant specificity. It is inconsistent with DFAT country information about the way the authorities dealt with Tamils who were low level combatants in the LTTE armed forces.
The Tribunal will now consider further whether the applicant’s brother was likely to be regarded by the authorities as a ‘low profile’ member of the LTTE when the civil war ended in 2009.
The brother’s account of his experiences with the authorities is materially different to the applicant’s account of his brother’s experiences towards the end of the civil war and his detention prior to his release in 2013. The applicant recounts that his brother was wounded in battle, captured by government soldiers, given medical treatment, and sent to a rehabilitation camp directed to persuading him to abandon Tamil separatism and return to mainstream society. The applicant does not claim he learnt his brother was arrested and tortured before he was released in 2013. The differences between the applicant’s account of his brother’s experiences and his brother’s account of his experiences are both obvious and significant.
The DFAT country information report about the way the government treated ordinary LTTE soldiers at the end of the war is consistent with the applicant’s understanding of the way his brother was treated after he was captured by the government army.
The DFAT report states that towards the end of the war, a large number of LTTE members were arrested by government security forces and sent to government-run rehabilitation centres.
The evidence indicates the applicant’s brother was a ‘rank and file’ LTTE soldier. The evidence does not establish the applicant’s brother was a ‘high profile’ member of the LTTE, defined in the DFAT report as a person who held a senior position in the LTTE’s military administration. The evidence indicates the applicant’s brother was a ‘low profile’ member of the LTTE.
According to the DFAT report, ‘low profile’ members of the LTTE include former combatants and those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the war.
On balance, the evidence before the Tribunal weighs in favour of finding the applicant’s brother was an ordinary armed combatant and a ‘low profile’ member of the LTTE. The Tribunal finds the applicant’s brother was a ‘low profile’ LTTE combatant.
DFAT assessed that the great majority of ‘low profile’ members of the LTTE have been released following their rehabilitation. Following release, they might have been monitored but generally would not be prosecuted.
The applicant, who has been in regular contact with his mother. There is no evidence that the applicant learn his brother was arrested, tortured, and only released because their mother procured his release by bribery in 2013.
After considering the evidence, the Tribunal finds it is insufficient to establish to the satisfaction of the Tribunal that the applicant’s brother was arrested under the PTA in 2009 and tortured, and that his release from detention in 2013 was procured by bribery.
On balance and having regard to the DFAT country information report about the rehabilitation processes to which ‘low profile’ members of the LTTE were subjected, the Tribunal’s finding that the applicant’s brother was a ‘low profile’ member of the LTTE.
The Tribunal also finds the applicant’s evidence of his understanding of his brother’s treatment by government soldiers as a wounded combatant who was detained in a rehabilitation centre, and the DFAT country information report about the monitoring of ‘low profile’ members of the LTTE after release from rehabilitation, the Tribunal prefers the applicant’s account of his brother’s treatment by the authorities at the end of the war to the brother’s account of those circumstances.
In its report, DFAT assesses that while ‘low-profile’ former members may be monitored, if they are not politically active, they are generally able to lead their lives without concern for their security because of their past association with the LTTE. The evidence does not establish that the applicant’s brother was politically active after the end of the war or after he was released from detention in 2013.
100. On balance, the evidence before the Tribunal is sufficient to establish that the applicant’s brother might have been monitored after he was released from detention. The evidence, however, is insufficient to establish to the satisfaction of the Tribunal that the applicant’s brother was persecuted or otherwise harmed by the authorities after he was released in 2013 for any reason relating to his ethnicity, or his role in the LTTE.
101. What is clear is the applicant’s brother was a long serving member of the LTTE and he was involved in armed conflict. He was a Tamil separatist. In the view of the Tribunal, he was likely to be regarded by the authorities as a ‘low profile’ former member of the LTTE armed forces.
102. The applicant’s’ brother engaged a travel agent and left Sri Lanka for [Country 2] in 2015. The Tribunal accepts the brother left the country using a travel agent. There is not suggestion of anything illegal or otherwise untoward about the travel services the travel agent provided to the applicant’s brother. The Tribunal therefore infers it is reasonably likely the brother left Sri Lanka legally and, that his departure was recorded by and known to the state security apparatus when he departed the country in 2015.
103. The circumstances in which the brother left Sri Lanka using the services of a travel agent weigh against accepting the authorities were unaware the brother left the country in 2019. There is no evidence that establishes a reasonable basis to form the view he ever returned to Sri Lanka. The Tribunal finds the applicant’s evidence about the authorities searching for his brother in Sri Lanka since left the country to be unpersuasive.
104. The brother did not give evidence in either review hearing. In the letter he provided to the Tribunal, he opines that, according to his knowledge, the applicant was never a member of the LTTE, but he understands he has his own profile there. He does not provide any information as to the factual basis of this opinion about his brother’s risk profile, or the source of any information he relies on in forming his opinion. Consequently, the Tribunal regards this opinion as unpersuasive and gives it neutral weight in this review.
105. The brother states, and the Tribunal accepts, he was granted asylum in [Country 2] in 2019.
106. The evidence about the brother’s circumstances in Sri Lanka and the reason he advances for being granted asylum by the [Country 2] authorities is general in nature and lacking specificity. Nevertheless, the applicant’s evidence, apart from the brother’s letter, about his brother being a combatant for the LTTE, makes plain that his brother’s circumstances in Sri Lanka were materially different to his own circumstances in Sri Lanka prior to his departure in 2009.
107. The applicant’s brother was a LTTE soldier and a Tamil separatist during the civil war. The applicant was employed as a [Occupation 1] during the war; he was never a member or supporter of the LTTE, and there is no evidence that he supported his brother in his role in the LTTE or supported Tamil separatism. In these circumstances, the Tribunal gives no weight to the decision of the [Country 2] authorities to grant asylum to the applicant’s brother in 2019.
108. The brother asserts that his relationship with the applicant would increase the interest of the authorities in the applicant and increase the danger to him if he were to return to Sri Lanka. The brother gives no specific consideration to the passage of time since he and his brother left Sri Lanka and any relevant political changes during that time, including the defeat of the LTTE in 2009 and whether any such changes may be relevant to the attitude of the authorities towards the applicant if he is returned to Sri Lanka.
109. The brother opines that it is his understanding that the applicant has his own political profile with the authorities in Sri Lanka. He believes that the applicant would be at risk of being harmed by the authorities if he returned to Sri Lanka.
110. The applicant’s brother asserts opinions about the applicant that are unsupported by specific facts identifiable as his firsthand knowledge of the applicant’s political profile and risks of harm, nor does he provide the source of his reasons for believing the applicant has a political profile in Sri Lanka that would put him at risk of serious harm if he is returned to Sri Lanka.
111. The Tribunal finds the understanding and opinions asserted by the brother about the applicant’s political profile in Sri Lanka and any risk of harm he may face if he is returned to Sri Lanka, to be unpersuasive, and the Tribunal gives them neutral weight.
112. Having considered the applicant’s evidence, and the evidence as a whole, including the brother’s letter to the Tribunal, the evidence provided by the applicant’s brother does not lend weight to the applicant’s claim that if he is removed to Sri Lanka now or in the reasonably foreseeable future, he would face a real chance of being treated as a Tamil separatist, member or supporter of the LTTE, a Tamil terrorist, or a Tamil who otherwise posed a threat to national unity or state security on the basis of his relationship with his brother.
113. According to the DFAT country information report:
DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile.
114. The evidence concerning the applicant’s likely risk profile prior to his departure from Sri Lanka in 2009 and the DFAT country information report and the other country information considered together, does not establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be treated by the security apparatus as a returning failed asylum seeker with a security risk profile that classified him as a Tamil separatist, member or supporter of the LTTE, or supporter of his brother’s revolutionary activities, or as a person who was likely to pose a risk to national unity or state security.
115. DFAT assesses[22] that the following Tamils would be of ‘particular interest’ to the authorities: ‘those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood.’ On balance, the evidence is insufficient to establish to the satisfaction of the Tribunal that the applicant is likely to be regarded by the authorities as a person of ‘particular interest’, in the sense contemplated in the DFAT assessment, if he is returned to Sri Lanka now or in the reasonably foreseeable future.
[22] DFAT country information report.
116. The applicant claims that the COVID-19 pandemic would threaten his capacity to subsist in Sir Lanka. There is no evidence before the Tribunal that established to the satisfaction of the Tribunal that the Sri Lankan government is currently imposing COVID-19 ‘lock down’ or other restrictions that prevent any individuals from travelling anywhere in the country in the course of their employment or when seeking employment, or for any other legitimate purpose.
117. The evidence, and in particular the evidence about the applicant’s training and employment history as a [Occupation 1] in Sri Lanka and Australia, and his significant monetary savings held in Australia, and country information before the Tribunal, considered as a whole, is insufficient to establish, to the satisfaction of the Tribunal, the existence of a real chance the COVID-19 pandemic would cause the applicant to suffer significant economic hardship that would threaten his capacity to subsist in Sri Lanka.
118. In reaching the forgoing conclusion, the Tribunal considered the applicant did not rely on specific evidence about whether the present civil unrest and economic circumstances in Sri Lanka, combined with the unspecified current state of the COVID-19 pandemic, would causally affect, to a significant degree, the employment prospects of trained and experienced trades persons, such as the applicant, if he returned to Sri Lanka. In expressing this view of the evidence, the Tribunal relevantly notes the applicant was employed by the one employer, despite the ravages of the of long-term civil war, from the time he left school until he left the country.
119. According to the statutory declaration dated 5 April 2022 (statutory declaration) the applicant submitted to the Tribunal, he claims that if he is returned to Sri Lanka, he would be ‘arbitrarily arrested and detained for a prolonged period and subjected to serious physical harm and possibly killed.’[23] This contention references the applicant’s oral evidence and in part, the applicant’s assertion made in the statutory declaration that he would be persecuted by the Sri Lankan authorities:
[23] Tribunal file, statutory declaration declared by the applicant in Melbourne on 5 April 2022.
because of my profile and the security risk I may be seen to pose to them. Recently the situation in my country has gotten worse for Tamils, other minorities and people who may be seen to pose a threat to the government.
120. The applicant also contends that as part of his background profile he was repeatedly and publicly accused of being a member of the LTTE. The evidence before the Tribunal, in both the first and second hearing, is insufficient to establish to the satisfaction of the Tribunal that the applicant’s background profile in Sri Lanka before he left and after he left that country in 2009, included him being repeatedly and publicly accused of being a member of the LTTE.
121. The applicant claims in the statutory declaration that he was the subject of a negative Australian Security Intelligence Organisation (ASIO) assessment during the time he was held in detention in Australia.
122. The Tribunal has accepted the applicant’s submission that on 19 August 2011, ASIO issued to him an adverse security assessment.
123. In the applicant’s statutory declaration dated 17 September 2015, he declares he was provided with an unclassified written summary of the information used as the basis for the adverse security assessment. Much of the information in the summary was redacted. The applicant declared he was not able to properly understand how this conclusion was reached.
124. According to the applicant, the conclusions upon which the adverse assessment was made by an unidentified external agency were as follows:
a. I ideologically supported the LTTE and its use of politically motivated violence;
b. I was likely involved in LTTE training and the provision of material support and information to the LTTE; and
c. I was likely to engage in acts prejudicial to Australia's security if I was granted a permanent protection visa.
125. These opinions are inconsistent with the applicant’s evidence concerning Tamil separatism: he was not a member or supporter of the LTTE, or a Tamil separatist and he did not provide any assistance to his brother and his separatist military activities. There is no evidence he was involved in activities that could reasonably be regarded as posing a threat to state security in Sri Lanka or Australia.
126. Additionally, if the written opinions disclosed to the applicant reflected the Sri Lankan security assessment of the applicant while he lived in Sri Lanka, given the DFAT country information and the other country information provided by the applicant concerning the persecution and inflicted on members of LTTE and suspected supporters of the LTTE, while the applicant resided in Sri Lanka, it is unlikely he would have been able to work without hindrance to his patterns of work, nor is it likely he would have been:
·Officially authorised to travel in and out of LTTE controlled areas;
·Released after a short period in detention (where he was beaten), because his mother appeared at the detention facility and demanded his immediate release;
·Permitted to reside undisturbed in Colombo after he registered his presence with the Colombo police;
·Issued with a passport and permitted to depart Sir Lanka unhindered.
127. Given the country information, it seems reasonably unlikely that a Tamil who was regarded as likely to be involved in LTTE training and the provision of material support and information to the LTTE, and who was identified by the authorities to be the brother of an active member of the LTTE, would be released from detention after a brief period (during which he was questioned and beaten), in response to his mother - the mother of a serving member of the LTTE - appearing at the detention facility and demanding his immediate release.
128. According to the representative’s submissions, which the Tribunal accepts, in February 2014 the ASIO security assessment was reviewed by an independent assessor, who found the assessment to be appropriate.
129. According to the representative’s submissions, which the Tribunal accepts, the independent assessor who reviewed the adverse ASIO assessment in February 2014, reassessed the ASIO assessment in June 2015, and issued the applicant with a ‘non-prejudicial’ security assessment. This assessment cleared the path for the applicant to apply for a SHEV in September 2015. The application was refused in 2018 and it is now under consideration in this proceeding.
130. After the applicant applied for the SHEV, he was released from immigration detention, in September 2015. After being released the applicant obtained full-time employment and later established his own part-time [Occupation 1] business. There is no evidence that he has been the subject of any adverse ASIO or police attention or interest since he was released from immigration detention in 2015.
131. The applicant’s representative submitted, in prehearing submissions (27 March 2022), that in early 2014 the applicant’s ‘personal information was leaked into the personal domain [meaning public domain] by the Australian government.’
132. The Tribunal accepts that personal information about the applicant was released into the public domain because of a ‘data breach’ in 2014. The Tribunal accepts the information originated from records held by an Australian government authority.
133. According to written submissions made by the applicant to the Department of Home Affairs as part of the visa application process on 1 March 2018,[24] the following categories of information were published about a number of individuals, including the applicant:
[24] Department file, document [number] – 1755583733.
·Full name.
·Gender.
·Citizenship.
·Date of birth.
·Period of immigration detention.
·Location.
·Boat arrival details.
·Reasons why the individuals were deemed to be unlawful.
134. The submissions contended that from this data breach alone, the Sri Lankan government and other non-state actors ‘would likely be made aware of the applicant having been detained in Australia for a prolonged period on account of an adverse security assessment by ASIO.’
135. The applicant did not substantiate this contention with concrete documentary evidence or oral evidence at either hearing that established the published information about the relevant individuals included information that asserted or implied the relevant individuals were being held in immigration detention for reasons that included an adverse ASIO security assessment.
136. The applicant’s submissions do not contend the ‘data breach’ included information that referred to any of the detainees having been assessed by ASIO, or that any of them had been the subject of an adverse ASIO security assessment.
137. There is no documentary or oral evidence before the Tribunal that establishes to the satisfaction of the Tribunal that the data breach included information that disclosed any of the detainees identified in the ‘data breach,’ including the applicant, to be persons who were assessed by ASIO and given an adverse security assessment.
138. The evidence before the Tribunal is insufficient to establish to the satisfaction of the Tribunal that the published information about the applicant was likely to have informed the Sri Lankan government that the applicant was being held in immigration detention ‘on account of an adverse security assessment by ASIO.’
139. In submissions dated 27 March 2022, the applicant claims the adverse ASIO assessment was ‘likely’ provided to the Sri Lankan authorities[25], with the result the Sri Lankan authorities will regard him as being more significantly involved in the LTTE than was previously the case, resulting in his risk of being harmed in Sri Lanka significantly increasing. The applicant’s statutory declaration dated 5 April 2022 references the applicant’s risk of persecution being increased by the adverse ASIO security assessment.
140. The Australian government agency the applicant contends is ‘likely’[26] to be the provider of the applicant’s adverse ASIO security assessment to Sri Lankan government agencies has not been identified.
141. In submissions of 27 March 2022, it was submitted that the risk of harm arising from the adverse ASIO assessment that was likely to have been communicated by Australian authorities to Sri Lankan government authorities is not negated by:
the possibility that the Sri Lankan authorities may be aware that the security assessment was downgraded.[27]
142. To describe the adverse security assessment as ‘downgraded’ implies the applicant is still subject to an adverse ASIO security assessment and that the adverse assessment now ranks at a lower level than the first assessment. The applicant’s contention is incompatible with what purports to be a statement of fact made at [9] of the same submissions, being:
On 24 June 2015, the Hon Margaret Stone, acting as Independent Reviewer of Adverse Assessments, issued a ‘non-prejudicial’ security assessment.
[25] Tribunal file, submissions at [71]
[26] Ibid.
[27] Tribunal file, representative’s submissions.
143. The applicant does not deal with the apparent material difference between a ‘non-prejudicial security assessment’ and a downgraded security assessment.
144. The Tribunal accepts at face value and gives to the words ‘non-prejudicial security assessment’ their ordinary meaning. Accordingly, the Tribunal finds that from 24 June 2015, the applicant was no longer the subject of an adverse security assessment. Furthermore, the Tribunal does not accept that the ‘non-prejudicial security assessment’ is correctly characterised as a downgraded security assessment.
145. Assuming for present purposes but not accepting that the applicant’s adverse security assessment was communicated to Sri Lankan authorities, the applicant has provided no evidence or reason why the relevant Australian government agency that supposedly communicated the applicant’s adverse security assessment to the Sri Lankan authorities, would not communicate the applicant’s non-prejudicial security assessment to the same authorities.
146. In summary, it is submitted on behalf of the applicant that if the ‘revised assessment’ (more accurately described, in the opinion of the Tribunal, as the ‘non-prejudicial’ security assessment) was communicated to the Sri Lankan authorities, it does not ‘necessarily reflect the position of the Sri Lankan authorities.’ These submissions are speculative in nature and the Tribunal puts them to one side.
147. An essential fact in this review that must be satisfactorily established by evidence is that an Australian government agency passed the adverse ASIO security assessment to a Sri Lankan government agency. To this end the applicant relies on the ‘data breach’ and what seems to be a transcript of part of an interview from ‘Lateline’, which the Tribunal understands to be a television programme that addresses political topics.[28]
[28] Ibid [70].
148. The Tribunal considered the ‘data breach’ issue earlier in these reasons for decision.
149. According to the applicant’s submissions, which the Tribunal accepts, the reported remarks in the transcript were made on Lateline. The remarks were made on 13 August 2012. The parties to the interview were Kerry Brewster and the Sri Lankan High Commissioner, Thisara Samarasinghe. The Tribunal understands Kerry Brewster to be a journalist. The first statement in the transcript is attributed to Kerry Brewster who says of the High Commissioner: ‘He confirms his government provides information to ASIO about individuals who’ve sought asylum in Australia.’
150. The transcript does not indicate that a representative of the Australian government participated in the interview, or that they subsequently confirmed the factual accuracy of the first statement made by Kerry Brewster. Furthermore, the High Commissioner did not expressly agree of confirm, after the Brewster made the assertion about his government providing information to ASIO, that the Sri Lankan government provides information to ASIO about individuals who’ve sought asylum in Australia.
151. The High Commissioner, in what appears to be his response to Brewster’s assertion, says information is provided to ‘Australian authorities’ and ‘Australian government authorities.’ These are generic terms that may or may not refer to ASIO.
152. The interview does not establish the date on which the Sri Lankan authorities began to provide information to Australian government authorities about certain individual asylum seekers in Australia.
153. The High Commissioner’s remarks do not establish whether any information Sri Lankan authorities provide to Australian government authorities is provided on an ongoing basis, or if it is provided selectively in respect of only a few individuals as distinct from all Sri Lankan asylum seekers in Australia.
154. It seems from the High Commissioner’s remarks that in circumstances where Sri Lankan authorities have ‘good reasons’ for believing an individual seeking asylum in Australia would pose ‘a risk’ if they were ‘given asylum’ in Australia, the reasons for that belief would be provided to the authorities in Australia. It is reasonable to infer from the context of the High Commissioner’s remarks that he is referring to individuals who would pose a security risk if the Minister granted any of them asylum in Australia.
155. There is no evidence before the Tribunal that the authorities in Sri Lanka had reason to believe that the applicant would pose a risk, to either Australian security or Sri Lankan national unity or state security, because he may be engaged in Tamil separatist activities in Australia after the end of the civil war in 2009.
156. The High Commissioner’s remarks extracted in the transcript before the Tribunal do not establish the Sri Lankan authorities provided information about individual asylum seekers, or the applicant, to the Australian government prior to 19 August 2011, the date on which the applicant was issued with an adverse ASIO security assessment.
157. Understandably, the High Commissioner used language that was vague in nature and quite non-specific. In that setting he said authorities in Sri Lanka and Australia have a good working relationship and work co-operatively regarding intelligence. The High Commissioner indicated that if there was good reason to believe an individual would pose a risk if they were granted asylum in Australia, the relevant intelligence about that individual would be provided to Australian government authorities.
158. The High Commissioner also qualified the extent to which information is shared. It is shared providing it can be done within the bounds of the laws of both countries, including privacy laws. The extent to which this caveat restricts the details and extent of information both sets of government agencies share intelligence with each other cannot be established from the evidence and country information before the Tribunal.
159. Relevantly, the High Commissioner said words to the effect that whatever intelligence the Sri Lankans may provide about an asylum seeker in Australia [any] ‘decision on a particular person is up to the Australian authorities.’ This remark indicates that any decision made about an individual asylum seeker in Australia is not a matter for the Sri Lankan authorities.
160. This remark weighs against the conclusion that any decision, including an adverse security assessment made by ASIO about any individual asylum seeker, would be part of the information the Sri Lankan authorities expect to be provided to them as part of the information the authorities share with each other.
161. The evidence, including the High Commissioner’s televised remarks of 13 August 2012, is insufficient to establish to the satisfaction of the Tribunal: that any information Sri Lankan authorities may have provided to any Australian government agency concerning individual asylum seekers in Australia was provided prior to the adverse security assessment of the applicant issued on 19 August 2011; that the applicant specifically was the subject of intelligence provided to any Australian government agency by the authorities in Sri Lankan; and that any such information played a part in the adverse security assessments of the applicant.
162. Further, the evidence, including the High Commissioner’s remarks, is insufficient to establish to the satisfaction of the Tribunal that the Sri Lankan authorities provided to any Australian government agency information that played any part in the 24 June 2015 ‘non-prejudicial’ security assessment of the applicant.
163. Furthermore, the evidence of the adverse ASIO security assessment of the applicant, the subsequent confirmation of that assessment, and the High Commissioner’s remarks, are insufficient to establish to the satisfaction of the Tribunal that the adverse ASIO security assessment and subsequent confirmation of that assessment is evidence of the existence of a real chance that the applicant would be subjected to serious harm for reason of his political opinion, Tamil ethnicity, or for any other reason if he is returned to Sri Lanka now or in the foreseeable future.
164. The applicant claims that he would have been identified by the authorities in Sri Lanka as a member or supporter of the LTTE or otherwise more deeply involved in Tamil separatism than they previously appreciated, because he was detained in [Country 6] on a boat with other passengers in 2014 in [location] in [Country 6]. The applicant refers to this incident as the [specified boat] incident.
165. The applicant was photographed on the boat, and he can be seen amongst a relatively large number of other passengers. The photographs were published in the international media. The Tribunal accepts the [specified boat] incident was the subject of international media reporting, and that the authorities in Sri Lanka would have been aware of it. The Tribunal is also satisfied the Sri Lankan authorities learned the applicant was one of the passengers on the boat. The Tribunal accepts the Sri Lankan authorities would have been confident the passengers intended to enter Australia and claim to be refugees.
166. The applicant declares, in his statutory declaration of 17 September 2015, that it was: ‘widely thought that the boat contained senior LTTE people.’ He was ‘was worried that this has added to his already significant adverse profile with the Sri Lankan authorities.’
167. The applicant maintains that the [specified boat] incident in 2014, in combination with other matters he specifies in his statutory declaration of 5 April 2022, would have made him of great interest to the Sri Lankan authorities.
168. The applicant asserts that it was widely thought that the boat contained senior LTTE members, and the applicant’s oral evidence is that his association with those people on the boat would increase his risk profile in the estimation of the Sri Lankan authorities. The applicant’s assertion that it was widely known that the boat contained senior members of the LTTE is vague in nature, lacking in specificity and unsupported by concrete evidence, and the Tribunal finds it to be unpersuasive.
169. The evidence is insufficient to establish that senior members of the LTTE were passengers on the boat or that the applicant associated on the boat with senior members of the LTTE.
170. Moreover, the evidence is insufficient to establish that the Sri Lankan authorities would consider the applicant’s association with the passengers to be of more significance than that each passenger was on the boat because they wanted people smugglers to arrange their passage to Australia to enable them to claim refugee status.
171. The evidence is insufficient to establish to the satisfaction of the Tribunal the [specified boat] incident would be regarded by the Sri Lankan authorities as demonstrating the applicant was likely to be a member or supporter of the LTTE, a Tamil separatist or that he would be likely to pose a risk to national unity and state security in Sri Lanka, if he was returned to Sri Lanka at that time or returned now or in the reasonably foreseeable future.
172. The applicant contends that Tamils generally were regarded and treated by the authorities as if they were terrorists during the period the applicant resided in Sri Lanka. The Tribunal finds this contention to be unpersuasive.
173. The evidence does not establish to the satisfaction of the Tribunal that the applicant would be treated as a terrorist simply because he is Tamil, or that he would be classified as a threat to state security or national unity because he is Tamil, if he is returned to his home country now or in the reasonably foreseeable future. The applicant’s pattern of life, living and working Sri Lanka since he left school at the age of 14 until he left Sri Lanka, travelling with official authorisations in and out of LTTE controlled land, his brief period of detention and the circumstances of his release, is evidence inconsistent with the applicant being regarded and treated as if he were a Tamil terrorist.
174. According to the DFAT country information report, unsuccessful asylum seekers who are returned to Sri Lanka are returned using commercial or charter flights. On arrival in Colombo returnees are presented to immigration officials where they will be interviewed. Depending on the circumstances of their departure, they may also be interviewed by other agencies.
175. Relevant to the circumstances the applicant is likely to face if he is returned to his home country, is the fact that he departed Sri Lanka legally. The DFAT country information report indicates that if a returnee departed the country legally, he would not be subjected to the delays upon return faced by returnees who departed the country illegally, and the consequent likelihood of being fined for departing the country illegally.
176. The DFAT country information report also informs the Tribunal that prior to departure from Australia, Australian Broder Force provides removed returnees with cash to assist their return.
177. DFAT country information indicates that during any airport interview, checks would be made to determine whether the applicant had a criminal or terrorist background, or whether he has a history of avoiding relevant orders, and whether any court orders or arrest warrants are extant. Checks with the authorities in the applicant’s home district will also be carried out. DFAT is not aware of returnees being mistreated during this process.
178. Considering the Tribunal’s findings about the applicant’s ASIO assessments, the personal data breach resulting in personal information about the applicant, and others being unofficially released into the public domain, the [specified boat] incident, the DFAT country information and material country information provided by the applicant, the Tribunal’s forgoing findings and concerns, and the evidence as a whole, the Tribunal is not satisfied of the following matters: there is a real chance the applicant would be arrested at the airport, put into detention, harmed in custody, or killed, for reasons of his actual or imputed political opinions, his ethnicity or for any other reason, if he is returned to Sri Lanka now or in the reasonably foreseeable future.
179. The Tribunal accepts the applicant suffered from depression and mental illness some years ago, and that he received treatment, and that he consulted an unnamed psychologist on an unspecified number of occasions some years ago.
180. The applicant declared in his statutory declaration of 5 April 2022 that he has not seen a psychologist for an unspecified number of years. He did not specify the period of years that has elapsed since he last consulted a psychologist or his reason for ceasing to consult the unnamed psychologist. There is no evidence of any intervening circumstance that prevented the applicant from seeing a psychologist if he felt he needed psychological treatment. There is no expert report from the applicant’s last treating psychologist as to the state of the applicant’s mental health and whether there was any clinical need for him to receive any further treatment.
181. In the statutory declaration of 5 April 2022, the applicant also declared that he continues to have some mental health issues which are not the same as his previous mental health issues and do not require the same kind of treatment. There is no evidence such as an expert report, that establishes that the applicant’s evidence is based on a current expert opinion.
182. The applicant’s evidence in relation to the current state of his mental health is unsubstantiated by expert evidence; it is general in nature and vague.
183. Th evidence does not establish to the satisfaction of the Tribunal that the applicant is currently receiving psychological treatment, or that he is currently suffering from or likely to suffer from a diagnosable mental illness or personality disorder or mental health condition, now or in the foreseeable future, or that if he is returned to his home country now or in the reasonably foreseeable future, he would require any medical treatment in that country.
184. There is no expert evidence that substantiates the applicant’s evidence that his mental health is poor, or that his mental health has impaired or would impair his capacity to engage in full-time employment, operate his own [Occupation 1] business in Australia or his home country now or in the reasonably foreseeable future.
185. The evidence does not establish the applicant is suffering from any form of physical ill health, that he is taking any prescribed medicine, or he is likely to require prescribed medicine or medical treatment for reasons of his physical health in Australia or Sri Lanka, now or in the reasonably foreseeable future.
186. The Tribunal has considered the country information provided by the applicant’s representative in the context of the second hearing that refers to the risk of worsening public health posed by disrupted power supplies to hospitals and medical facilities and shortages of medications.
187. The evidence and country information about the current and anticipated conditions in hospitals and medical facilities and shortage of medicines has not been established by evidence to be relevant and material to the applicant if he is returned to the Sri Lanka now or in the foreseeable future.
188. Furthermore, the evidence relevant and material to the applicant’s mental and psychological health, and his physical health is insufficient to establish, to the satisfaction of the Tribunal, the existence of a real chance that the applicant would suffer serious harm for reasons of ill health if he is returned to Sri Lanka now or in the reasonably foreseeable future.
189. According to the DFAT country information report, returnees, and returning failed asylum seekers, including Tamils, may experience difficulties in finding suitable employment and housing upon their return. Relevantly, the applicant’s mother resides in Sri Lanka. He has a sound relationship with her, they communicate with each other regularly, he provides her with money, and he has significant cash savings in Australia.
190. There is no evidence that the applicant would be unable to travel safely to and reside with his mother in the northern city of [City 1] if he is removed to Sri Lanka now or in the reasonably foreseeable future, nor is there evidence that he would be unable to work as a [Occupation 1] and utilise his monetary savings in Australia in Sri Lanka.
191. The applicant qualified as a [Occupation 1] and has a long of history of [Occupation 1] experience and employment in Sri Lanka. According to the evidence, the applicant was able to maintain his employment despite the ravages and deprivations of the civil war. The applicant has used his [Occupation 1] skills in Australia to establish his own part-time business, whilst also working full-time as a [Occupation 2] in a factory.
192. According to the evidence, before departing Sri Lanka, and in the context of the war, the applicant was consistently employed as a [Occupation 1] for all his working life except for the relatively short period he lived in Colombo before he departed for Australia. In Colombo the applicant was able to sustain himself with alternative employment. There is no evidence that he was unemployed for any significant period in Sri Lanka, despite the overarching civil war conditions during his working life.
193. According to the applicant’s evidence, he has approximately AU$20,000 in savings in Australia. The evidence indicates the applicant is likely to be able to reside with his mother and that he has sufficient cash savings of his own to be able to subsist in Sri Lanka, if he is removed to Sri Lanka, now or in the reasonably foreseeable future. In reaching this view, the Tribunal has also given regard to relevant information in the DFAT country information report.
194. DFAT assesses that there is no official discrimination based on ethnicity in public sector employment. Rather, Tamils’ underrepresentation is largely a result of language constraints and disrupted education because of the war. The applicant has a long history of employment and the evidence does not establish the applicant has been denied employment based on his ethnicity or for any other reason.
195. In the second hearing, by written and oral submissions, the applicant contended that circumstances such as the current civil unrest and weakening national economy, as well as the fact that the current political leadership will retain control of the parliament and government of Sri Lanka, mean that Tamils are being targeted by the authorities and seriously harmed due to their ethnicity.
196. In support of this submission, the applicant provided extracts of comments made in several media outlets, including the Tamil Guardian. The Tribunal has read and considered all the media reports relied on in the applicant’s submissions dated 10 June 2022.
197. A report in the Tamil Guardian deals with a protest that occurred on 30 March 2022. The newspaper asserts that ‘Tamil and Muslim bystanders who did not take part in yesterday’s protest were among those detained by Sri Lankan security forces.’ The submission seems to contend that the Tamil Guardian accurately and reliably reports that some of the arrested bystanders ‘had been severely tortured,’ ‘with reports [source unspecified] suggesting that they may be charged under the PTA.’
198. The Tribunal does not, without corroborative reportage, accept the Tamil Guardian’s report to be a necessarily impartial and factually accurate source of information about Tamils and Muslims and the protest on 30 March 2022.
199. Furthermore, the country information quoted in the submissions does not assert that protests are frequently occurring throughout the country. The reportage quoted in the submission indicates that protests are a relatively rare occurrence in the north-east where most of the Tamil population resides. Relevantly, according to the applicant’s statutory declaration dated 5 April 2022, the applicant’s mother now resides in the northern city of [City 1].
200. The quoted BBC report indicates that anonymous Tamil activists say the security forces are showing restraint when dealing with protests in Colombo, but they fear the same kind of restraint will not be afforded elsewhere. It is not readily ascertainable, from the passages of reportage quoted in the applicant’s submissions, to determine whether the BBC News report, which is indicative of restraint being used in Colombo, is about the 30 March 2022 protest that is the subject of the quotes taken from the Tamil Guardian. If the 30 March protest occurred in Colombo, the BBC News report may contradict the information taken from the Tamil Guardian.
201. The BBC report quoted in the applicant’s submissions indicates the authorities have shown restraint in dealing with protests in Colombo, but a named Tamil civil rights activist’s expresses fears of violence and that protesters in the north would be treated differently. The country information and evidence before the Tribunal does not establish to the satisfaction of the Tribunal a reasonable and contemporary basis for apprehending activist’s apprehended fear has been realised or will be realised now or in the reasonably foreseeable future.
202. Considering the applicant’s mother resides in the northern city of [City 1], and the occupational skills and monetary savings of the applicant, and that the applicant lived and worked in the northern region of the country, there are no evident country conditions that would prevent the applicant, if he is returned to Sri Lanka now or in the reasonably foreseeable future, from travelling safely to and re-locating to and working as a [Occupation 1] in the north-east of the country, or more specifically, where his mother is residing in [City 1].
203. The Tamil Guardian reports supporters of the government were questioning Tamils in Colombo and notes one case of a Tamil reporting she was assaulted, and the police did not intervene. This reportage considered alone, or in combination with the other reportage or recent events referred to in the 10 June 2022 submissions and the applicant’s evidence at both hearings, does not establish to the satisfaction of the Tribunal that Tamils are subjected to serious harm in Colombo, or elsewhere in Sri Lanka that involves systematic and discriminatory conduct for reasons of their Tamil ethnicity or religion.
204. The Tribunal accepts that the economic circumstances in Sri Lanka are serious and getting worse. Amongst other things, there are fuel shortages, energy shortages, food shortages, corruption in public office, the value of the currency is deflating, and all of this is affecting the population. There has been widespread dissatisfaction with the government and its leadership, widespread civil unrest, and street protests.
205. The BBC News report quoted in the applicant’s 10 June 2022 submissions suggests public protests are rarer in Sri Lanka’s north-east, where most of the Tamil population reside, which is the area where the applicant lived and worked when he resided in Sri Lanka, but for a short period he spent with his mother in Colombo prior to his departure in 2009.
206. The evidence does not establish, and the applicant does not claim he would be unable relocate to [City 1] and the northern part of the country where most of the Tamil population reside.
207. On balance, the forgoing evidence is insufficient to establish to the satisfaction of the Tribunal that the applicant faces a real chance of serious harm due to economic hardship, or denial of access to basic services that would threaten his capacity to subsist if he is returned to Sri Lanka now or in the reasonable foreseeably future.
208. Furthermore, the evidence considered as a whole, is insufficient to establish to the satisfaction of the Tribunal that when the applicant departed Sri Lanka legally using a genuine Sri Lankan passport with a tourist visa for entry and temporary stay in [Country 4], he departed to escape a real chance of persecution by the authorities for reasons of being imputed with a connection to the LTTE, his political opinions or his Tamil ethnicity.
209. In this review the Tribunal has considered the whole of the DFAT country information report and referred specifically to material aspects of the report. The Tribunal has also considered the country information provided by the applicant. To the extent the DFAT country information report differs from the country information provided by the applicant, the Tribunal has given greater weight to the DFAT country information and assessments, to the extent those matters are both relevant and material to the determination of the issues in this review.
210. The applicant identifies with the Hindu faith. The evidence does not establish that the applicant practised the Hindu faith in Sri Lanka, that he did so in Australia or that he would do so if he is returned to Sri Lanka. The evidence does not establish that the applicant has suffered systematic discrimination and persecution whilst residing in Sri Lanka for faith-based reasons, or the existence of a real chance he would suffer serious harm for faith-based reasons, if he is returned to Sri Lanka now or in the reasonably foreseeable future.
Finding
211. Having considering the evidence in conjunction with the applicant’s claims considered individually and cumulatively, the Tribunal finds the evidence is insufficient to establish to its satisfaction the existence of a real chance the applicant would be subjected to serious harm for reasons of his actual or imputed political opinions, ethnicity, religion, or on the basis of any of the other ground specified in s 5J(1)(a) of the Act, or for any other reason, if he is returned to Sri Lanka now or in the reasonably foreseeable future.
212. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
213. The Tribunal will now consider whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
214. A person will satisfy the criterion if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Sri Lanka, there is a real risk the applicant will suffer significant harm. The definition of significant harm is stated in s 36(2A) of the Act, which is reproduced in the attachment to this decision.
215. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
216. The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm in relation to his claims.
217. Accepting ‘real risk’ imposes the same standard as the ‘real chance’ test, for the reasons stated above the evidence is insufficient to establish to the satisfaction of the Tribunal the existence of a real risk the applicant will suffer significant harm if he is removed to Sri Lanka now or in the reasonably foreseeable future.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
decision
220. The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Haag
MemberAttachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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